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Judges consider dairy appeal

A Thief River Falls-area dairy told the Minnesota Appeals Court Thursday that it could have done a better job of warning neighbors about odors coming from the operation’s cleanup efforts.

Excel Dairy’s lawyer also said it should have pushed the Minnesota Pollution Control Agency for approval to perform cleanups in a cooler time of year to reduce noxious odor issues.

"Anyone who can’t look back and find ways to improve is being silly," Jack Perry said.

Neither of those shortcomings, however, should be enough to cost the dairy a new permit it needs to continue operating, Perry said during the St. Paul hearing.

In fact, Perry said, dairy farm officials have gone beyond expectations to solve the odor issues, but there was so much manure they could not have stopped the smell completely.

"You could not be more proactive than what these guys did," Perry said. "We were not only trying to comply."

Perry said the company submitted requests to the state to do more clean-up.

Excel was in court after the MPCA’s decision in January to deny the operation a new permit, a decision that would shut down the rural Thief River Falls dairy.

In defending the agency’s decision to deny a new permit, Assistant Attorney General Robert Roche told a three-judge appellate court panel that the state was more than patient in waiting for the dairy to perform its cleanup.

He argued that the dairy was supposed to have completed cleanup by fall 2007. If that had happened, many of the problems that followed could have been avoided, Roche said.
Roche added that the Legislature has prodded the pollution officials to strictly enforce hydrogen sulfide standards.

"We can’t have these people living with a previously declared public health threat indefinitely," Roche said. "The PCA’s decision was legally correct and environmentally necessary."

The state has been frustrated with Excel since 2005, saying that the dairy has had more cows in its barn than it should have, built a feed pad without permission and tried unapproved methods for treating manure.

The issue came to a head in May 2008 when citizens living around the dairy contacted the Minnesota Health Department in May 2008 due to odors and health effects from hydrogen sulfide. Later that summer, the gases were so bad that health officials warned neighbors to evacuate.

The MPCA cited repeated complaints of air pollution in its January decision to deny the new permit. Over the years, state officials say, Excel also ignored orders to repair and empty manure ponds and failed to cover them and, according to the MPCA, has exceeded air quality limits for hydrogen several hundred times during the last two years.